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Apparel Doth Oft Proclaim the (Wo)man and May Soon Sport a Copyright

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Not every copyright issue nowadays arises from the Internet.
Here’s one that arises from venerable needle and thread.
Haute couture is tired of knock-offs and is trying to “put its Manolo down.”

New York Senator Charles Schumer - - what, you were expecting Nebraska’s Ben Nelson to take the lead on this? - - is sponsoring the Innovative Design Protection and Piracy Prevention Act, intended to provide three years of copyright protection for fashion designs. This short term is itself interesting: first, if you write a non-pseudonymous book, your copyright is good for life plus 70 years; second, I’m showing my age, but didn’t the “chemise” and Rudi Gernreich’s topless bathing suit each come and go in about four months? Compared with life plus 70 years, three years seems absurdly short; compared with the labile nature of fashion (which mutates faster than a clever bacterium), it seems absurdly long.

Nevertheless, no matter how ardently you may long for the next Bonfire of the Vanities, it’s hard not to sympathize somewhat with a hardworking fashion designer. Personally, I’m not sure I see the point of what he or she does; on the other hand, I freely confess I could never design a dress or a mule myself.

There could be sticky wickets. The proposed law would protect original designers only against “substantially identical” copies. The standard for copyright infringement otherwise is “substantially similar.” “Identical” will be a higher bar for a plaintiff designer to clear. But let’s face it: the purpose of the proposed legislation is to deter knocking-off in the first place, rather than to provide an effective remedy for completed copying. Who’s going to order up 10,000 dresses from a Chinese tailor based on his or her own judgment call that he or she is being only “similar” and on no account “identical.”

And how will evidence be introduced?

Will runways be installed in courtrooms for models to descend wearing the “accusing” and the “accused” works?

Will aging designers whose stars are fading find second careers as expert witnesses?

Those farther down the fashion food chain are supposed to be protected from liability: buying or selling a knock-off inadvertently is not actionable. Will a phrase like “friends don’t let friends buy knock-offs on purpose” pass into the language? Amateur seamstresses (of either gender) may copy protected designs for personal use. (TiVo for clothes?) But what happens if you and your son are the same size, and he asks one night to borrow your “Tommy Hilfiger”?

I know not what course others may take, but as for me, you’ll find me at my local Goodwill Industries second-hand clothes shop.

This advisory was prepared by Nutter's Intellectual Property practice. For more information, please contact your Nutter attorney at 617-439-2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.
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